United States: Top Five Labor Law Developments For June 2017

In an amicus brief filed with the U.S. Supreme Court,
the U.S. Department of Justice reversed itself and argued for the
legality of mandatory arbitration agreement provisions waiving
employees' rights to bring class actions under the National
Labor Relations Act. The parties have asked the Court to settle a
Circuit Court split on whether such agreements are lawful under the
Act. In its petition in NLRB v. Murphy Oil USA Inc., No.
16-307, the Obama DOJ had asked the Court to settle that split by
holding such provisions are unlawful under the Act. According to
the DOJ's brief reversing that position, since President Donald
Trump took office, the DOJ has "reconsidered the issue and has
reached the opposite conclusion." The consolidated cases are
Ernst & Young LLP et al. v. Morris et al., No. 16-300;
NLRB v. Murphy Oil USA Inc., No. 16-307; and Epic
Systems Corp. v. Lewis, No. 16-285.

President Trump has nominated Marvin Kaplan and William Emanuel
to fill the two openings on the National Labor Relations Board.
Senator Lamar Alexander (R-Tenn.), the chairman of the Senate
committee that will consider the nomination, has said he plans to
push for a speedy confirmation process. If Kaplan and Emanuel are
confirmed, the Board will have a 3-2 Republican majority and is
expected to reverse many pro-employee rulings.

The Board ordered a rerun election after upholding a
union's claims that the employer's voter list contained
multiple defects under the Board's new election rules. RHCG
Safety Corp., 365 NLRB No. 88 (June 7, 2017). The Board
concluded that a rerun was required because 90 percent of the
addresses on a voter list were inaccurate, the names of at least 15
eligible employees were omitted from the voter list, and the
employer did not provide phone numbers for any of its employees.
Under the Board's April 2015 "quickie" election
rules, employers must provide an expanded voter eligibility list
– including not only the names and home addresses required
under the old rule, but also "available" home and cell
phone numbers (as well as job titles, work locations, and
"available" email addresses). While the employer argued
its mistakes and omissions were inadvertent and that the list
included all home and cell phone numbers available to the HR
department, the Board held the employer's search for the phone
numbers also should have included the files of individual
supervisors, who in fact have some additional phone numbers.

In a dissent in Cristal USA, Inc., 365 NLRB No. 74
(May 10, 2017), Board Chairman Phillip Miscimarra has stated his
belief that the Board should reverse Specialty Healthcare,
357 NLRB 934 (2011). The Board majority in Cristal relied
on Specialty Healthcare in affirming a Regional
Director's bargaining unit determination. The majority held the
petitioned-for production employees constituted an appropriate
unit, despite the fact that the employer's other production
employees and warehouse employees shared the same facility-wide
terms and conditions of employment. The larger unit would not be
appropriate, the majority held, because the petitioned-for
employees did not share an "overwhelming" community of
interest with the others, given their separate day-to-day
supervision and minimal interchange. Miscimarra, arguing for a
reversal of the RD decision, wrote that the micro-unit in Cristal
would "promot[e] instability by creating a fractured or
fragmented unit." Going further, Miscimarra stated that
"Specialty Healthcare was wrongly decided."

Republicans in Congress have proposed bills that would reverse
Board rules and rulings. The U.S. House of Representatives on June
6 proposed two bills that would repeal portions of the Board's
"quickie" election rules. Proposed by Representative Tim
Walberg (R-Mich.), the Workforce Democracy and Fairness Act (H.R.
2776) would require that Board elections occur no earlier than 35
days after a Board order directing an election. Representative Joe
Wilson (R-S.C.) proposed the Employee Privacy Protection Act (H.R.
2775), in conjunction with Walberg's bill, to require the Board
to ask employers for no more than one form of personal contact
information for election voter lists (under current Board rules,
employers must provide names, home addresses and
"available" home and cell phone numbers). House Education
and Workforce Committee Chairwoman Virginia Foxx (R-N.C.) has not
yet stated when the Committee will consider the bills. Meanwhile,
Senator Johnny Isakson (R-Ga.) has reintroduced a bill in the
Senate that would reinstate the pre-2011 standard for determining
which employees belong in a particular bargaining unit. While the
bill has not advanced in past sessions of Congress, many anticipate
it will proceed further in the current Congress.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

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October 15, 2017. That was the day celebrity Alyssa Milano (from Who's the Boss?, Melrose Place and Charmed) tweeted "If you've been sexually harassed or assaulted write "me too" as a reply to this tweet."

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